My daughter was killed in a car crash and as a result has now received a payout of $350,000. I am a beneficiary and so is my husband as my daughter did not have a Will. However my husband has since divorced me and set-up home with his new wife. Is he still entitled to half of the payout?

My daughter was killed in a car crash and as a result has now received a payout of $350,000. I am a beneficiary and so is my husband as my daughter did not have a Will.  However my husband has since divorced me and set-up home with his new wife. Is he still entitled to half of the payout?

As your daughter did not have a Will the distribution of her Estate is subject to the statutory provisions of the Succession Act 2006 (NSW) (“the Act”). Under the Act the parents of a deceased who died without a Will are entitled to the whole of the deceased’s Estate if the deceased did not leave a spouse or children.

As you and your husband are both alive you are both entitled to receive one half of her Estate.

However, you may have the ability to make an application to the Court for a family provision order to provide for your maintenance, education or advancement in life.

Applications for family provision orders can only be made if the person making the application is an “eligible person” as defined in the Act. In your circumstances you may qualify as an eligible person if you can show the Court that:

  • You were, at any time, wholly or partially, dependent on your daughter; and
  • You were, at any time, a member of the household of which your daughter was a member.

If you qualify as an eligible person then the Court will consider the following matters:

  • The nature of your relationship with your daughter and the extent of any obligations owed to you by your daughter;
  • The nature and extent of your daughter’s Estate;
  • You and your husband’s financial resources including earning capacity;
  • The financial circumstances of your husband’s new wife;
  • Whether you or your husband have a physical, intellectual or mental disability;
  • Your age;
  • Any contribution you made, financial and non-financial, to your daughter’s Estate or your daughter’s welfare;
  • The provision already made for you to a half share of your daughter’s Estate;
  • Whether you were maintained, wholly or partly, by your daughter; and
  • Your character and conduct before and after your daughter’s death.

If the Court is satisfied that a family provision order should be made in your favour then the amount you received from your daughter’s Estate may be increased and your husband’s amount subsequently decreased.

To ensure that you do not lose the opportunity to make a claim for a family provision order you should seek legal advice as soon as possible.

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